Neutral Doctrine, Unequal Outcomes: Courts and the Reproduction of Gender Norms

Nidhi Krishna
DOI:

Abstract

This article examines how judicial reasoning across jurisdictions, including India and the United States, evaluated against CEDAW Committee jurisprudence and the international adjudicatory bodies, may reproduce gender hierarchies despite formal commitments to equality. Using a case-cluster methodology, it analyses groups of decisions rather than isolated judgments to identify recurring patterns in judicial interpretation. Through comparative analysis, the study traces how similar patriarchal assumptions surface transnationally in the definition of harm, evidentiary evaluation, procedural thresholds, and remedial choices. The findings demonstrate that gender stereotyping is rarely explicit; instead, it operates through apparently neutral doctrines that narrow statutory protections, scrutinise survivor conduct, fragment patterns of violence, and prioritise social harmony or institutional caution over substantive equality. These practices collectively normalise endurance, minimise gender-based violence, and erode a survivor’s access to justice. The article argues that such outcomes reflect structural judicial blind spots rather than exceptional error. It concludes that advancing gender justice requires courts to move beyond formal equality and adopt a consciously anti-stereotyping, context-sensitive approach to adjudication. Key recommendations include strengthening judicial reasoning obligations, institutionalising anti-stereotyping analysis, enhancing gender-sensitive judicial training, prioritising survivor-centred remedies, and developing accountability mechanisms focused on reasoning quality rather than outcome control.

Keywords

Judicial stereotyping, Judicial reasoning, Gender equality, Gender-based violence, Access to justice, Substantive equality